Public Guide 23B (HSS) – Application by a local authority for a restriction to protect a statutory charge arising under the Health and Social Services and Social Security Adjudications Act 1983

Update: July 2012

Update

This edition of the guide replaces the October 2011 edition. Section 2 has been amended to clarify that some objections may not prevent completion of the restriction application, as explained in section 3.

Scope of this guide

This guide is intended to help people who may receive a Land Registry notice about a local authority’s application for a restriction to protect a statutory charge arising under the Health and Social Services and Social Security Adjudications Act 1983.

1 Introduction

This guide is intended to help people who may receive a notice from Land Registry about a local authority’s application for a restriction to protect a statutory charge arising under the Health and Social Services and Social Security Adjudications Act 1983.

A restriction is an entry in the title register of a property that prevents Land Registry from registering certain transactions (such as a transfer or a mortgage) until the terms of the restriction have been complied with. For example, somebody’s consent may need to be obtained.

If you need more information about the application or why it has been made, please contact the applicant or their legal representative. Their details are in the notice we have sent you.

You may wish to object to the application. Our notice tells you how to do this and the date by which you have to do so.

If you do object, Land Registry will consider what you say. However, your objection may not be successful and we may still complete the application. This is because what you have said does not (as a matter of law) affect the applicant’s right to enter a restriction in your title register. In such a case, the registrar will have decided that your objection is 'groundless'. This means that if the application is otherwise in order, we must complete it.

2 Common reasons for objection

This guide attempts to answer some points that are often made in response to applications by local authorities for a restriction to protect a statutory charge. The points in section 3 Points/answers are examples of common objections which may not be successful, for the reasons given in the answers. If your objection raises one or more of these points, it may not affect the applicant’s right to apply for a restriction and the registrar may rule your objection groundless.

Please read the guide carefully before you reply to our notice. If you need legal advice please see a solicitor or other qualified legal adviser as soon as possible. Land Registry staff cannot give you legal advice. Possible sources of advice are:

• a solicitor

• a law centre

• a Citizens Advice Bureau.

3 Points/answers

P1: The local authority has provided accommodation for my co-owner, not me.

A1: If your co-owner has a beneficial interest in the property and the local authority has provided accommodation for them (under the National Assistance Act 1948) that has not been fully paid for, then the law¹ allows the local authority to create a charge (called a 'statutory charge') over your co-owner’s beneficial interest. If you and your co-owner hold the property as beneficial joint tenants² then the local authority will be able to protect this charge by a restriction entry in the title register.

¹ Section 22 Health and Social Services and Social Security Adjudications Act 1983, as amended.

² If you own your property as beneficial joint tenants then the property belongs to you and the other owner(s) jointly. You must all act together as a single owner (for example on a re-mortgage or sale). You do not own specific shares in the property and you cannot give away a share of it by a will. If you die, your interest in the property passes automatically to the other owner(s). For further details see Public Guide 18 – Joint property ownership*.

P2: I (or my co-owner) didn’t know that accepting accommodation could result in a charge over my (their) interest in the property.

A2: Lack of knowledge may not affect the local authority’s entitlement to apply for a restriction entry. If you are not sure how your legal rights are affected, you should seek legal advice.

P3: I think it is unfair for a charge to be imposed.

A3: The law allows the local authority to create a statutory charge in its favour. If the local authority has complied with the relevant legal requirements it may create such a charge and apply for a restriction entry in the title register. You may think that the law is unfair but this alone does not prevent the local authority’s application for a restriction.

P4: The local authority has not followed the proper procedures.

A4: The local authority (or its conveyancer) has told Land Registry that it complied with all relevant legal requirements when it created the statutory charge. If you think that it has not done so, you may contact Land Registry to object. If the registrar considers that your objection is not groundless, there will be a dispute which then has to go through a formal process potentially involving the Adjudicator to HM Land Registry (and possibly a court). You may also wish to seek legal advice.

P5: I am paying or have offered to pay the accommodation charges in full or by instalments.

A5: If a statutory charge has been validly created, and if any money is still owed for the assessed accommodation costs, the local authority is entitled to protect the charge by a restriction. When all outstanding moneys have been paid in full, the local authority should provide documentary evidence to confirm this. You (and any co-owner) can then send this evidence to Land Registry with a form RX3* to cancel the restriction. (You do not have to pay a fee.) Alternatively the local authority can send it with aform RX4* to withdraw the restriction.

P6: I disagree with the amount that the local authority has assessed.

A6: If there is a valid statutory charge, Land Registry cannot investigate this. The restriction entry in the register will not refer to the amount of money involved. The local authority has certified to Land Registry that the statutory charge has been created. If you disagree with this, or about how the local authority has assessed its charges, you may contact Land Registry to object. If you do, please give us details of any correspondence about the charge. If the registrar considers that your objection is not groundless, there will be a dispute that has to go through a formal process as mentioned at P4/A4 above.

P7: Will the restriction stop me from selling or mortgaging my property?

A7: Not necessarily. The restriction will not stop you from selling or mortgaging, provided that its terms are complied with (if they apply). It would however be up to a buyer or a lender to decide whether to proceed if there is a restriction on the register.

P8: Can the restriction be removed in the future if I do not object now?

A8: Yes. When all moneys secured by the statutory charge have been paid in full, the local authority should provide documentary evidence to confirm this. You or the local authority can then send this evidence to Land Registry so that the restriction entry can be removed (see P5/A5 above).

*Note: Forms RX3 and RX4 and Public Guide 18 can be downloaded in English and Welsh from Land Registry’s website at www.landregistry.gov.uk or obtained by phoning Customer Support on 0844 892 1111 (0844 892 1122 for a Welsh-speaking service).